Kerala High Court
Mathew John vs Sojan Varghese on 18 February, 2025
2025:KER:15419
Crl. R. P. No. 1205 of 2012
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. V. JAYAKUMAR
TUESDAY, THE 18TH DAY OF FEBRUARY 2025 / 29TH MAGHA, 1946
CRL.REV.PET NO. 1205 OF 2012
AGAINST THE ORDER IN ST NO.2249 OF 2010 OF JUDICIAL MAGISTRATE OF
FIRST CLASS-II, PATHANAMTHITTA
REVISION PETITIONER/COMPLAINANT:
MATHEW JOHN,
THADATHIL PUTHEN VEEDU, CHENNEERKKARA VILLAGE,
KOZHENCHERRY TALUK, PATHANAMTHITTA.
BY ADVS. SRI.R.S.KALKURA, SRI.K.ACHANKUNJU,
SRI.HARISH GOPINATH & SRI.V.VINAY MENON
RESPONDENTS/ACCUSED & STATE:
1 SOJAN GEORGE,
KOTTAKKATT VEEDU, THUMPAMON THAZHOM P.O., ELAVUMTHITTA
(VIA), PATHANAMTHITTA - 689 625.
2 STATE OF KERALA,
REPRESENTED BY THE HOME SECRETARY, SECRETARIAT,
TRIVANDRUM, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM - 682 011.
SRI. RANJIT GEORGE, PP
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 18.02.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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Crl. R. P. No. 1205 of 2012
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K.V.JAYAKUMAR, J.
=========================
Crl. R. P. No. 1205 of 2012
=========================
Dated this the 18th day of February, 2025
ORDER
Impugning the order of the Judicial First Class Magistrate Court-II,
Pathanamthitta in S.T.No.2249/2010 dated 18.2.2012, the complainant preferred
this revision petition.
2. The revision petitioner herein has filed a complaint before the Judicial
First Class Magistrate Court under Section 138 of the Negotiable Instruments Act.
3. The learned Magistrate dismissed the complaint under Section 204(4)
of the Code of Criminal Procedure stating that, there was no representation for the
complainant and no steps were taken as directed by the Court.
4. The learned counsel for the revision petitioner/complainant submitted
that the learned Magistrate ought not have dismissed the complaint under Section
204(4) Cr.P.C. There is no willful delay or latches on the part of the revision
petitioner/complainant to represent the matter and for the payment of process fees.
Further, the learned Magistrate ought to have granted an opportunity to allege and
prove his case.
5. Due to the dismissal of the complaint under Section 204(4) Cr.P.C., the
revision petitioner lost his valuable right to prosecute the accused and thereby great
prejudice is caused to him. According to the revision petitioner, an opportunity is
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to be granted to him to allege and prove his case, in the interest of justice.
Otherwise, there will be miscarriage of justice.
6. Considering the facts and circumstances of the case, notice to the
accused/respondent is dispensed with.
7. Before further discussion, it may be useful to extract Section 204(4)
Cr.P.C.
"204. Issue of process.
(1) If in the opinion of a Magistrate taking cognizance of an
offence there is sufficient ground for proceeding, and the case
appears to be -
(a)a summons case, he shall issue his summons for the
attendance of the accused, or
(b)a warrant case, he may issue a warrant, or, if he thinks fit,
a summons, for causing the accused to be brought or to
appear at a certain time before such Magistrate or (if he has
no jurisdiction himself) some other Magistrate having
jurisdiction.
(2) No summons or warrant shall be issued against the accused
under sub-section (1) until a list of the prosecution witnesses has
been filed.
(3) In a proceeding instituted upon a complaint made in writing,
every summons or warrant issued under sub-section (1) shall be
accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process-fees
or other fees are payable, no process shall be issued until the fees are
paid and, if such fees are not paid within a reasonable time, the
Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the
provisions of section 87."
8. On perusal of Section 204(4) Cr.P.C., it could be seen that the
Magistrate may dismiss the complaint if the complainant fails to remit the process
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fee within a reasonable time. The words 'may' used in the said subsection clearly
indicate that the Magistrate has got sufficient discretion, while exercising his
powers. But such power should be exercised judiciously, so as to secure the ends of
justice and to prevent the abuse of process of the Court.
9. In Tom Thomas v. Abdul Lathief and Another [2006 KHC
1712], this Court would observe that an order of dismissal passed under Section
204(4) Cr.P.C cannot be treated as an order of acquittal and therefore, not
appealable under Section 378 Cr.P.C.
10. In Krishnankutty v. Ramani and Others [2021 KHC 508], this
Court observed that, where dismissal of a complaint due to non payment of process
fee and other fees payable, the said order is not an appealable order. Therefore, the
remedy of the complainant is to file a revision before the Sessions Court or before
the High Court.
11. On perusal of Krishnankutty's case (supra) and Tom Thomas's case
(supra), it is clear that the remedy of the complainant, if a complaint is dismissed
under Section 204(4) Cr.P.C ,is to prefer a revision petition before the Sessions
Court or High Court.
12. On perusal of the judgment and upon hearing the submissions across
the Bar, I am of the view that, this Criminal Revision Petition is to be allowed,
affording an opportunity to the revision petitioner/complainant to allege and prove
his case, in accordance with law.
In the result,
(i) The Criminal Revision Petition is allowed.
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(ii) The impugned order of the learned Magistrate in
S.T.No. 2249/2010 is set aside.
(iii) S.T.No. 2249/2010 is restored to file.
(iv) The learned Magistrate shall proceed with the case
in accordance with law and dispose of the matter as
expeditiously as possible, preferably within a period of six
months from the date of receipt of a copy of this order, after
affording the parties an opportunity of being heard.
(v) The revision petitioner/complainant shall appear
before the Magistrate concerned on 5.3.2025.
Sd/-
K. V. JAYAKUMAR
JUDGE
MMG
